D'Orsay had been a remarkably eligible life, and that both parties supposed that he still continued so. But 1854. FOSTER v. MENTOR Company. in fact, before 21st November 1851, the Count was already suffering under a mortal disease of which he afterwards Life Assurance died. The defendants accepted the five reassurances proposed to them; and they executed five deeds poll. These were printed forms, the blanks of which were filled up. The policy on Count D'Orsay commenced: "Whereas [William Bridgett, John Drewett and James Foster, Trustees of The Britannia Mutual Life Assurance Association, Princes Street, in the city of London,] the persons assured by this policy are desirous of effecting an assurance with The Mentor Life Assurance Company, upon the life of [Gaspard Gabriel Gillion Alfred Count D'Orsay] in the sum of [1500]. And the said assured have caused to be delivered into the office of the said Company a declaration or statement in writing, signed by them, bearing date the [21st day of November last], thereby setting forth the age and the past and present state of health and other circumstances touching the habits of life of the said person, on whose life the assurance is effected, which declaration so far as it respects the age of the said person is hereby admitted to be correct, and the said assured have agreed that the said declaration shall be the basis of the contract between them and the said Company." The parts between [ ] were filled up in writing; the rest was printed. It is unnecessary to set out the rest of the instrument, the effect of which corresponded with that set out in the declaration. The Mentor Life Assurance Company then received payment of the five premiums, amounting in the whole to 6497. 10s. 10d., in one cheque. After the Count's 1854. FOSTER V. MENTOR death, it appeared that in November, 1851, his life was not insurable. The defendants resisted payment on the ground that the paper signed by Mr. Foster, above Life Assurance set out, amounted in legal effect to a declaration by the Company. assured, on 21st November 1851, as to the then present state of health of the Count. At the trial, both sides examined witnesses as to a supposed custom, in cases of reinsurance, to confine the warranty on the part of those reinsuring to the state of health at the time of the original insurance, and to leave the reinsurers to enquire for themselves as to whether it had continued unaltered. The evidence on this head did not amount to much, as reinsurances of this kind did not appear to be common; but there was some evidence of such custom. The Lord Chief Justice expressed his opinion to be that the question, whether the paper of November 1851 was a signed statement as averred in the plea, was not a pure question of law for the Judge. He gave the defendants leave to move to enter a nonsuit if there was no evidence, and directed the jury to find a verdict for the defendants if they believed that the intention of the parties was that the paper of 21st November 1851 was to be understood as a statement, on the part of the insured, that Count D'Orsay was at that time in good health; but that they should find for the plaintiff if they thought the intention was that the paper was to be understood as a statement on the part of the assured that the state of health of the Count, at the time the original policy was effected, was shewn by the Britannia papers, to which the defendants were referred, and that the defendants might make any further enquiries they pleased. He directed them, in framing their verdict, to consider 1854. FOSTER V. MENTOR Company. the whole of the circumstances; the evidence of custom as to reassurance; the form of the policy, which was partly printed, partly written; the manner in which the printed proposal had been filled up before Mr. Foster Life Assurance affixed his name; the way in which that name was, by the bracket, apparently confined, as a signature, to the reference to the Britannia papers; and the fact that there were several blanks not filled up. He expressly told them that if the question was one of law their finding would be reviewed, but that if it was one of fact their verdict would be final: at the same time he did not conceal that in his opinion the weight of evidence was much in favour of the plaintiff. Verdict for the plaintiff. Sir A. J. E. Cockburn, Attorney General, in last Michaelmas Term, obtained a rule Nisi to enter a nonsuit, pursuant to the leave reserved, or for a new trial on the ground of misdirection, or that the verdict was against the weight of evidence. In the same Term (a), Willes shewed cause (a). The only question at the trial was whether there was a warranty, on the part of the plaintiff's Company, that Count D'Orsay was in good health in November 1851. The plaintiff disclaims making any point on the ground that the whole directors or trustees do not sign: the Company agree that whatever Mr. Foster, the managing director, warranted or signed is to be taken as if warranted or signed by the whole directors, or trustees. The question is therefore reduced to this: Whether the paper of 21st November 1851 was a warranty by Mr. Foster that Count D'Orsay was then in good health. (a) November 16th. Before Lord Campbell C. J., Coleridge, Wightman and Erle Js. 1854. FOSTER V. MENTOR It is urged that the policy is conclusive on this matter: but that is not so. The recital there is, that there was a declaration in writing. The first enquiry, Life Assurance in all cases in which a written document refers to Company. something extrinsic, is what is the particular thing referred to, a question to be answered by evidence. In the present case there can be no doubt that the recital referred to the paper which has been produced in evidence. Then comes the question, What is the nature of the thing referred to? That depends, not upon the description contained in the referring document, but on the thing itself. If it answers all the description it is well; if not, the inaccurate parts of the description are falsa demonstratio, and as such must be rejected. Here constat de documento: the paper is the one produced. Does it answer all the description in the policy? That is, is it signed by the assured, and is it touching the then present state of health of Count D'Orsay, or is there misdescription in these respects? To answer that, the paper itself must be looked to. If there had been no name at all attached to the paper, it could not have been said that the recital proved that it was signed. There is here a name attached; and the question is whether that was a signature to the whole paper, or not. And the first point is, whether that was a question for the Court or the jury. It may be admitted that a name attached to a written instrument is, primâ facic, to be taken as a signature authenticating the whole of what appears on the face of the instrument; but it cannot be doubted that a name may legally be applied as the signature to part only; and, on the face of this instrument, the name written as it is at the foot of a particular sentence, "For these particulars 1854. FOSTER v. MENTOR see copies of Britannia papers attached," purports to be intended to apply to the reference, and to that only. If it does not so purport it is, at the least, an imperfect, and ambiguous instrument, and the intention to affix Life Assurance Company. the name as a signature to the whole is not clear. That is enough to make it a subject of enquiry, by means of circumstances dehors the instrument, what Foster intended to sign; which must be a question for a jury. In Wigglesworth v. Dallison (a), and a long series of cases collected in Mr. Smith's notes to that case (b), it is established that a custom of trade is admissible as evidence to explain or add incidents to an imperfect document. It was therefore admissible in the present case: and, it having been received, there could not be a nonsuit, as the effect of it was for the jury; Moore v. Garwood (c). If there was a question for the jury, it could be no other than the one put. As to the verdict being against evidence: any one, looking at the whole circumstances, would come to the conclusion to which the jury have evidently come, viz. that the printed forms were irregularly used in a transaction to which they were not applicable. It is a strong fact that, if there was a declaration that Count D'Orsay was in good health, there was also a declaration that The Duke of Beaufort was in good health; for the same form was used in his case. Yet in The Duke of Beaufort's case 201 per cent. premium was paid, because he was known not to be in good health. It is said that the recital in the policy operates as an estoppel on the plaintiffs. It must be admitted that, if it appears that the parties have agreed to proceed on a (a) 1 Doug. 201. (b) 1 Smith's Leading Cases, 305. (c) 4 Exch. 681.. |